Ancient Tales of a Kingdom not Unlike One You Know

Month: July 2012

Sometime in June this year, it was reported that a Federal High Court judge in Abuja had purported to invalidate the entire 2011 general elections as a result of a successful patent infringement suit against the Independent National Electoral Council and a few other parties. The plaintiff contended that its patent to transparent and collapsible ballot boxes was infringed by INEC, as INEC did not obtain its permission to use said ballot boxes in the conduct of the 2011 elections (see a concise background report here).

Surprisingly,

very little fanfare followed the judgement, due possibly to the incredulousness of it all. First of all, there are all the jurisdictional issues. The Federal High Court, for instance, has no jurisdiction over whether or not a person has been validly elected President or Vice-President (section 239, 1999 Constitution). Also, would the ruling take precedence over the concluded and ongoing election petition matters all over the country?

There is also the issue of the appropriateness of the judgement in the context of what the Patent and Designs Act stipulates as the consequences for infringement. First of all, it is unclear whether the conduct of elections would fall under “commercial purposes” (section 6 (3) (a)) so as to constitute infringement. Secondly, the remedies for infringement under t

he law (section 25 (2)) are injunction (i.e. court bans INEC from using patented invention), damages (i.e. compensation to holder of patent) and accounts (i.e. INEC handing over all profits it made from the unlawful use or exploitation of the patented item). Why, therefore, would an order be made invalidating the entire elections as a result of a purported infringement?

The greatest concern, however, should be how a transparent ballot box can be deemed a patentable invention (see here for detailed analysis of patentability in Nigeria). A ballot box is a box with a slit at the top for pushing ballots in. A transparent ballot box is a box that is transparent and on the top of which a slit has been made for inserting ballots. What is the novelty in a transparent ballot box? Where was the inventive process?

Section 1 of the Patents and Designs Act is extremely clear and I reproduce it in full below:

1.(1) Subject to this section, an invention is patentable-

(a) if it is new, results from inventive activity and is capable of industrial application; or

(b) if it constitutes an improvement upon a patented invention and also is new, results from inventive activity and is capable of industrial application.

(2) For the purposes of subsection (1) of this section-

(a) an invention is new if it does not form part of the state of the art,

(b) an invention results from inventive activity if it does not obviously follow from the state of the art, either as to the method, the application, the combination of methods, or the product which it concerns, or as to the industrial result it produces; and

(c) an invention is capable of industrial application if it can be manufactured or used in any kind of industry, including agriculture.

It will surprise most readers that the extent of the scrutiny of patent claims by the Patents Registry is as to mere formal validity (i.e. they only check that the 6 or 7 documents required to be deposited have been deposited). They do not examine the novelty of the claims in the application and there is no system for detecting whether or not an application potentially infringes an earlier grant of patent. So, yes, I could walk into the Patents and Designs registry tomorrow and be granted patents for the iPhone and the iPad and their constituent parts and processes. In fact, it has been reported here that “the registrar of patent went ahead to issue the same patents to other companies without first invalidating the right of [the Plaintiff in the suit against INEC]”.

The picture isn’t too great on the service supply side either. In “developed” countries, most patent attorneys were engineers, pharmacists, physicists, etc, before studying law. As far as I’m aware, Nigeria does not have any patent attorneys – we are largely agents; filing the claims that foreign patent attorneys have drawn up.

Apparently, INEC has issued a statement declaring that it no longer uses the “infringing” boxes but it would have been very interesting to see where appealing this Federal High Court ruling would have taken the matter.

A few weeks ago, a friend and I were discussing (almost) everyone’s favourite topic – Nigeria, its problems and their solutions. We agreed that most people have a grim outlook on Nigeria; paradoxically, because everyone has the unshakable belief that they will flourish on the individual level. My conclusion that day was that the odds against things improving to the state we all desire are extremely (almost insurmountably) high and that it wouldn’t be a bad idea for anyone who could emigrate to do so.

Many times since that conversation, I have heard the same resounding despondency expressed on various platforms, particularly Twitter. Rational people coming to the conclusion that there is very little that they can do as individuals to improve the situation in the country; that the corruption and inefficiency hydra simply has too many heads and, quite frankly, no one knows how to destroy the beast. But expats continue to become repats in increasing numbers, probably putting paid to my emigration theory. What is the reason for this?

I have another theory. I think there are 2 broad categories of Nigerian expatriates. The first (‘Group A’) are those who were born and bred outside Nigeria, whose only connection to Nigeria is their parents and extended family and who, really, are only nominally Nigerian. Then there’s the band (‘Group B’) who become expatriates in the pursuit of foreign education, leaving for A-levels, doing an undergrad degree and a post-grad or two (or leaving for a masters degree after a Nigerian undergrad). Group B expats, with their firsthand knowledge of the failings and frustrations of Nigeria, I think, make the larger portion of repats. I actually do not personally know a single Group A repat.

But this calls for a further question. Most Group B repats have the opportunity to remain where they studied, get decent jobs and live a relatively comfortable life. No more of all that “Nigerians in London only wash plates and corpses” myth. If Nigeria’s future is as bleak as most believe, why do people keep rushing away from round-the-clock electricity, security of lives and property, healthcare, education, and the general peace of mind?

Many will say Nigeria is a land of opportunity but I haven’t found “opportunity” to mean much more than government patronage. Let me explain. A few months ago, at The Yellow Chilli, I was involved in a discussion with other punters over this reputed opportunity that the country is supposed to have. “Let me tell you”, said one authoritatively, “Nigeria is the only country in the world that you can go to bed a pauper and wake up rich.” “Fine”, I said, “name three people that you know personally that this has happened to.” Silence. He tried another tack “Nigeria is the most capitalist country in the world.” “How?” I ask. He then went into a winding definition of capitalism that was in effect stating that your fortunes would change if a parent, uncle or friend went into government or a lucrative MDA. “But isn’t that really opportunism, not capitalism?” I asked again. He shrugged and said “Well, you’re a lawyer; I can’t win in an argument with you.” The argument ended the way a lot of them do when my good friend Logic is introduced, but I have found many people holding similar views. Capitalism, rather than being a successful combination of all the factors of production to yield profit, is viewed as easy access to cash, because ceteris is not paribus in Nigeria. You need someone in government (or a retired general, admiral or air marshal) on your board of directors or funnelling work your way. Or that uncle or relative working in FGH to give you a note so that you can find work with TYU. Otherwise your talent, if you have any, may sink in the ocean of mediocrity around you.

Then there’s the business environment. It takes about a month to register your business (unless you pay for the fast-track “one day” option – which still effectively takes about a week), you open shop and then all sorts of regulatory problems hit you. In Lagos, if those hoodlums that call themselves the “council task force” are to be believed, you need a permit from each of the local government areas to drive your company car in Lagos. Otherwise your vehicle will be impounded once you leave the LGA your business is located in. The LGA troubles don’t end there though – they want to levy you the same taxes you’re paying to the state or some you’ve never heard of (in proof of which they’ll bring a newspaper cutting of an interview with the LGA chairman where he announced the new “law”).

But even if it’s a plum repat job you come back to, there are security issues where you live, you’re spending bucket-loads on diesel or a service charge, quack artisans compounding issues in your home and (in my case) your overhead tank frame collapsing and nearly crushing your 3-month old baby and her nanny. You have to be super-rich to come close to being fully insulated from the absence of the infrastructure to which you became accustomed while you were an expat.

So why do expats become repats? No place like home? The global recession? The credit crunch? The uncertainty you know being better the certainty you don’t? Or preferring potential kingship in hell to possible servitude in heaven? If we are truly imploding, why isn’t there a mad dash outwards? Or are we guilty of exaggerating the problem?

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